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ILLIAM PiNKNEY 

Lawyer Statesman Diplomat 



ADDRESS OF 



HENRY FLANDERS, Esq. 



Before the 



New Jersey State Bar Association 



June 16» 1906 






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WILLIAM PINKNEY 

Mr. Chainuaii and Gentlemen of the Bar Association: 

William Pinkney, the subject of my address to-day, was 
doubtless the most famous lawyer and forensic orator of his 
day. And it was the day of great men. 

His learning was profound, his logic close woven, and 
his powers of persuasion rarely equalled. His career was 
a varied one. It embraced law, legislation and diplo- 
macy. It began early, and closed before the advances of age 
had impaired or even touched his imperial intellect. He died 
in his fifty-eighth year, in the full splendor of his renown, 
when his discussion with the British Foreign Office on 
those questions of international law affecting neutral rights 
had given him a fame unsurpassed in our diplomatic an- 
nals; when, too, his arguments in the Supreme Court of 
the United States on great constitutional and international 
questions had established his supremacy in that tribunal ; 
when, too, in Congress, he had made his memorable speech in 
the House on the treaty making power, and in the Senate on 
the Missouri Compromise, the greatest speech, Henry Clay 
declared, that he had ever heard in that body. 

The leading incidents of such a life are interesting and 
instructive, and before an assemblage of lawyers like this, 
will be considered, I hope, worth rehearsing, even though 
inadequately. 

Mr. Pinkney was born at Annapolis, Md., March 17th, 
1764. His father, we are told, was an Englishman of 
strong convictions and resolute character. His mother is 
described as a woman of vigorous understanding and ten- 
der sensibilities. He acquired a good English and classical 
education at King William's Academy, afterwards St. John's 
College, Annapolis, Maryland, his native town. 






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He was twelve years old at the time of the Declaration 
of Independence, and eyen at that early age was already a 
sturdy American, and as a boy espoused the cause of the 
Colonies with fervor. His father, on the other hand, was 
an unflinching Tory, and in consequence was involved in 
very distressing troubles. During the war his person was 
seized, his property confiscated, and his family impoverished. 

The close of the war found young Pinkney a clerk in a 
drug store at Baltimore. He had joined a debating society 
of the town, and the society had announced a public debate; 
Pinkney being one of the champions. The forthcoming de- 
bate was much talked of and created as much expectancy in 
the little community as a new opera would at the present 
day, when Baltimore has become an important city. 

It so happened that Samuel Chase, a distinguished law- 
yer of Maryland, a signer of the Declaration of Indepen- 
dence, and after the adoption of the Federal Constitution 
a Justice of the Supreme Court of the United States, was 
in Baltimore that evening, and having nothing to occupy his 
attention, — Baltimore at that time being not much more 
than a large village, — he went to hear the debate. Mr. 
Chase w^as delighted with Pinkney. He made inquiries 
about him, sought him out and advised him by all means to 
study for the bar. Young Pinkney told him that that was 
impossible ; that the war had ruined his father and his fam- 
ily; and that as one of the children of poverty he must for 
the present earn his daily bread by his daily labor. Where- 
upon Mr. Chase invited him to come to Annapolis, offered 
him the use of his office and books and a seat at his table 
until he was prepared for the bar. He accepted this offer, 
gave up his clerkship, went to Annapolis, and devoted him- 
self with ardor to the study of his future profession. In 
1786 he was admitted to the bar. 

He came to it especially well grounded in the law of 
real property and .special pleading. He began practice in 



Harford county. I have been able to obtain but little in- 
formation as to his first attempts as a lawyer. I suspect his 
progress was more or less slow. There could not have been 
much litigation, except of an obscure kind, one hundred 
years ago, in a country district like that. However, in three 
years after coming to the bar he married a sister of Com- 
modore Rogers, one of our distinguished na^'al heroes, which 
would imply some degree of prosperity. He had, too, be- 
come known to the people of the county and they elected 
him a member of the Maryland Convention, which was called 
to ratify the Federal Constitution. The same year (1788) 
he was elected to the House of Delegates, and remained a 
member of that body four years, until 1792, when he re- 
moved to Annapolis. 

When he established himself at Annapolis, w-hich at that 
time was the political and judicial metropolis of Maryland, 
Pinkney was twenty-eight years old. He then had in outline 
the physical and mental qualities that later on became a 
developed and finished picture of the man. His figure was 
large, manly and handsome and he had about him that in- 
definable air of distinction which arrests attention, and which 
characterized his appearance until the day of his death. He 
had, too, an easy fioAv of natural eloquence, a melodious 
voice, and his choice of words was instinctively felicitous. 
With learning, with eloquence, with ambition, with high 
courage, and indomitable will, he took at a bound a foremost 
place at the Maryland Bar. He was in the full tide of 
professional success, when, in 1796, Washington appointed 
him conjointly with Christopher Gore, the leader of the 
Boston Bar, a Commissioner at London under the Jay 
Treaty, to ascertain what claims, and to what extent England 
was liable to the United States by reason of her alleged vio- 
lation of the Treaty of Peace (1783) and by reason of her 
later spoliations of American commerce. 

In pursuance of his official duties Pinkney remained in 
England eight years. Questions of the gravest import were 



discussed with the British authorities during this long 
period; questions involving the interpretation of the Treaty 
of Peace (1783) ; questions relating to contraband, domicile, 
blockade and prize; and it is conceded that in the discussion 
of these questions Pinkney displayed an ability, a knowledge 
of international law, a power of reasoning and illustration 
that did honor not only to himself, but reflected honor upon 
his country, and the English Government, by reason of these 
prolonged discussions, finally agreed to pay, and did prompt- 
ly pay, the United States, or its citizens, a sum aggregating 
over eleven million dollars. 

While engaged in his official labors in England, Pink- 
ney found, owing to the delays constantly interposed by the 
British Ministry, a good deal of leisure, which he devoted 
to an arduous review and study of the law, and the art of 
eloquence as well. He also, as occasion permitted, fre- 
quented the Houses of Parliament and listened to the de- 
bates, — to such orators as Fox, Pitt, Burke, Sheridan, — and 
was likewise an interested visitor to the courts of law and at 
the theatres. 

He does not seem to have heard Erskine except in the 
House of Commons and was disappointed in him, as he was 
in Mrs. Siddons, the queen of the tragic stage, as well as in 
Fox. He thought Fox an orator and a reasoner, but in 
spite of nature. He awarded the palm to Pitt. In debate 
he regarded him as a past master; his logic so close and 
cogent; his eloquence so illustrative, so pertinent, and so 
effective. 

Pinkney returned to America in 1804, after an absence 
of eight years, luit returned a more profound lawyer and a 
more cultured orator than when he left our shores. It was 
his boast that he and Chief Justice Parsons, of Massachu- 
setts, were the only American lawyers who had thoroughly 
mastered Coke on Littleton. He now settled at Baltimore. 
Business flowed in on him. His practice was very varied 



5 

and very lucrative, but he always prized renown more than 
money. That canker never soiled his soul. Sordidness and 
greediness were foreign and repugnant to his nature. His 
application to the law and to the practice of eloquence, now 
that he was free from public duties, was intense, and his 
powers of exposition and illustration were increased by his 
constant habit of extempore speaking in private. 

Mr. Pinkney pursued fame with ardor. His soul was 
athirst for it, and he was willing to pay the price; to live 
laborious days and nights. He achieved it by the strenuous 
and unremitting exercise of his intellectual faculties. When 
he became the undisputed leader of the American Bar, he is 
reported to have said that whenever that leadership was 
questioned or whenever there was even the suggestion of a 
doubt about it, that moment he wished to die. He lived, 
and continued to live until the day of his death, amid the 
incense, the admiration and applause of listening courts and 
listening senates, and without these visible evidences of his 
power he preferred to bear no life. 

And yet he had his weaknesses. He affected to be a 
man of the world, as if law and eloquence were rather by- 
products, as the manufacturers say, and not, as they were, 
the chief and absorbing business of his life. He dressed in 
the height of fashion, and he addressed the court and took 
notes during a trial wearing perfectly fitting amber colored 
gloves. His manner had an air of hauteur. To the older 
lawyers, especially to those who stood in the relation of 
rivals, his attitude was somewhat lofty. To the young men 
of the bar, however, he was uniformly kind and they re- 
garded him with admiration and affection. He liked his 
friends to think that he was much interested in the ladies and 
a worshipper at the shrine of beauty. 

The late David Paul Brown, who was also a man of 
affectations, once told me that on one occasion he went to 
Baltimore to consult Mr. Pinkney. He called at his office. 



and sending in his name to the inner office occupied by the 
great man, he was immediately received and thus addressed : 
"I am glad to see you, Mr. Brown, but you come at a most 
inopportune moment. I was just exchanging glances with a 
very pretty French woman at the opposite window, and I 
fear your advent has spoiled a romance." 

All this, however, was mere affectation and was so ap- 
preciated by Mr. Brown. Mr. Pinkney was the devoted 
husband of a devoted wife, and neither coveted any other 
man's possessions nor disturbed any other man's domestic 
peace. His foibles, like spots on the sun, which the astrono- 
mers tell us neither obscure its light nor diminish its heat, in 
no wise impaired the splendor of his intellect, nor the in- 
herent temper of his rectitude. 

In 1805 he was appointed Attorney General of Mary- 
land and in the following year, conjointly with Mr. Monroe, 
he was sent to London by Mr. Jefferson to treat with the 
English government on the pressing and threatening ques- 
tions growing out of the continued, insolent and wanton 
aggressions of England on our rights as neutrals. This 
Commission bore date May 17, 1806. 

Lord Auckland and Lord Holland were deputed by the 
Foreign Office to meet them and conduct the negotiations on 
behalf of the British government. The result of the ne- 
gotiations was a treaty signed by the respective envoys on 
the last day of December, 1806. Monroe and Pinkney did 
the best they could ; they adjusted minor differences, but on 
the great questions of search and impressment, of paper 
blockade, of lawless capture of neutral vessels, they could 
obtain no real concessions and these seeds of future and in- 
evitable war were left to germinate. Mr. Jefferson de- 
clined to submit the treaty to the Senate. 

Mr. Monroe returned home (1807), leaving Mr. Pink- 
ney sole minister; the administration instructing him to quit 



the scene when he should conclude that his presence in Eng- 
land was no longer useful. His position in the hostile at- 
mosphere of London was difficult and delicate. His extra- 
ordinary abilities and high character were respected and ad- 
mired, but the progress of his negotiation, at all stages of 
it during the four following years, was as ineffectual as it 
was exasperating. His labors were in vain. 

At the end of that period he asked for an audience of 
leave, but George the Third was again stricken with insanity 
and it was not until the Prince of Wales was installed as 
Regent that the audience of leave was arranged. It took 
place on the 28th day of February, 181 1. In receiving Mr. 
Pinkney, the Prince Regent professed amicable sentiments 
towards the country he represented and hoped the differences 
between the two governments would be amicably settled. 
Mr. Pinkney replied that he cherished the same desire for 
an amicable settlement — such a settlement as would preserve 
the just rights of his country. To this the Prince Regent 
is reported to have said that he could not look into men's 
hearts; he could only judge the tree by its fruits. 

On Pinkney's return home in June, 181 1, he was 
elected to a seat in the Maryland Senate and on December 
II. 181 1, he was appointed by Mr. Madison, Attorney Gen- 
eral of the United States. After the failure of his en- 
deavors to secure peace by negotiation, he now sought jus- 
tice by means of war. He became an advocate of that meas- 
ure, joining his counsel with the counsels of Clay, Calhoun 
and others in stiffening the sinews of Mr. Madison, who, 
like Jefferson, hated war and had a passion for peace. 

I War w-as declared on June 18, 181 2. By a singular 

coincidence the declaration was drawn by Pinkney, now 
Attorney General, and communicated to England by Mon- 
roe, now Secretary of State, the two envoys who had vainly 
endeavored to obtain such concessions as would have avoided 
it. / Concessions came at last, but they came too late. When 



8 

they reached America war had already been declared. Lord 
Grenville, in the House of Commons, expressed his indigna- 
tion that concessions, "which ought to have been made in 
the outset, had been so long delayed that they were useless 
and like similar delay in the Revolution led to a fatal war. 

Pinkney resigned his post as Attorney General 1814, 
in consequence of an act of Congress requiring that officer 
to reside at Washington. This was incompatible with his 
professional engagements at Baltimore, and hence his resig- 
nation. In the following year (181 5) Baltimore elected him 
to a seat in the lower house of Congress, and he signalized 
his service in that body by a speech on the treaty making 
power, marked by genius, learning and eloquence. The doc- 
trine he asserted in that speech has gone far to determine 
the action of the government down to the present day. But 
the question he discussed, and discussed, too, with transcen- 
dant ability has not yet been authoritatively settled, unless 
indeed the practice of the government, in accordance with 
his views, may be considered to have so settled it. That ques- 
tion is, does the power vested in the President, by and with 
the advice and consent of the Senate, to make treaties, pro- 
vided two-thirds of the Senators concur, compel Congress 
passively to appropriate money — for example, if the treaty 
makes such appropriation necessary or requires legislation 
of any kind in order to give it effect, or may Congress con- 
stitutionally, in pursuance of its power to legislate, exercise 
deliberation, and if it considers a treaty unwise or inexpe- 
dient refuse to enact the laws necessary to its execution? 
Under the Constitution the House of Representatives origin- 
ates appropriations. May the President and Senate forestall 
its action by stipulating that appropriations shall be made? 
Can the House be thus shorn of its legislative power ? Can 
it act only in one way, although its legislative judgment dis- 
approves such action, and believes that it imperils the com- 
mon defense and general welfare of the people? 



Mr. Pinkney, with great power of logic and with great 
amplitude of illustration, held that the legislative will is 
bound by the terms of a treaty and if legislative action is 
required to carry these terms into effect, Congress is con- 
stitutionally obliged to take such action. In England, on 
the other hand, where the power to make treaties is abso- 
lutely vested in the Crown, and where Parliament has no 
power to modify or in any way to change them, yet, when 
legislative action is required to give effect to them, Parlia- 
ment may constitutionally refuse such action. And I ven- 
ture to think that this is the true doctrine. 

Mr. Pinkney vacated his seat in the House on being ap- 
pointed special envoy to Russia and Naples by Monroe, who 
had succeeded Madison as President. When he returned 
home from this mission, after an absence of two years, he 
resumed the practice of his profession. In 1820 he was 
elected by the Maryland Legislature a Senator of the United 
States. Here he delivered his great speech on the Missouri 
Compromise. It was a memorable occasion by reason of the 
magnitude of the subject discussed, and a memorable scene 
by reason of the irresistible desire of all classes to liear him. 
His speech was one of the great events of his epoch. Pink- 
ney's chief labors for the residue of his life were bestowed 
upon the law. He appeared in nearly all the chief causes 
argued in the Supreme Court. His vast learning, his 
energy, his fire, his imagination, his splendid diction and 
fervid manner always roused and affected his hearers, and 
the coldest of the judges found it difficult to resist him. His 
mind was self stimulated. The internal fires were always 
aglow. He needed no external prick or spur. 

Mr. Pinkney was a master of the English language ; his 
enunciation, inflection, and pronunciation were perfect. 
The late David Paul Brown told me that the lawyers who 
practiced in the Supreme Court were all under cow to Pink- 
ney, as he expressed it, by reason of his accomplishments in 



lO 

his mother tongue. He was extremely sensitive to any mis- 
take in its use. The wrong word or the wrong pronuncia- 
tion cut him hke a knife and the lawyers dreaded his criti- 
cism. John Randolph had the same sensitiveness as to the 
King's English. When he lay dying in Philadelphia he 
heard his physician (Dr. Physic, I think) use the word "im- 
petus," and pronounce it im-/7^-tus. The dying man turned 
his eyes towards him and gasped "im-pe-tus, doctor, im- 
pe-tus," 

Pinkney used metaphor to illustrate and enforce his 
arguments, and it always expressed the precise thought he 
wished to convey. He seized his subject, said Judge Story, 
with comprehension and with the vigor of a giant. His 
accurate and discriminating law knowledge. Story also tells 
us, and his cogent logic, gave him superiority over every 
other man whom he had known. Chief Justice Marshall 
said he was the greatest man he had ever seen in a Court 
of Justice. Chief Justice Taney was of the same opmion. 
"He had," said William Wirt, "an Oceanic mind — he was 
the most thoroughly equipped lawyer I have ever met in 
the Courts." 

In the great case of McCullough vs. Maryland,* the 
question was whether Congress could create a corporation 
(National Bank) and Avhether the stock of such a corpora- 
tion could be taxed by a State? Luther Martin, Joseph 
Hopkinson and Walter Jones appeared for Maryland, and 
on behalf of that State denied that the power to establish 
a corporation had been delegated to the United States, and 
asserted that such power could not be injected into the con- 
stitution by implication ; that contemporary exposition of the 
Constitution by its authors and by those who supported its 
adoption was wholly repugnant to the existence of such a 
power. Webster and Pinkney represented the bank ; Wirt, 
too, as Attorney General of the United States, appeared in 

* 4 Wheaton, 594. 



tl 

support of its constitutionality. Webster, on behalf of the 
bank, opened the argument and Pinkney closed it. The 
great leading principles were stated by Webster with mas- 
terly skill. In closing Pinkney substantially enforced the 
same principles, but with ardor, with enthusiasm, with fer- 
vor, with amplification and illustration all his own, captiva- 
ting the audience and charming and convincing the Court. 
Wirt and Webster were lost sight of and Pinkney was the 
hero of the hour. Judge Story describes his argument in a 
letter to his friend Judge White, of Massachusetts. I will 
read it to you. 

''I never in my whole life," he says, "heard a greater 
speech. It was worth a journey from Salem to hear it. 
His elocution was excessively vehement, but his eloquence 
was overwhelming. His language, his style, his figures, his 
arguments were most brilliant and sparkling. He spoke like 
a great statesman and patriot, and a sound constitutional 
lawyer. All the cobw-ebs of sophistry and metaphysics, about 
State rights and State sovereignty, he brushed away as with 
a mighty besom. Mr. Pinkney possesses beyond any man 
I ever saw the power of eloquent and illustrative amplifi- 
cation."* 

I will now call your attention to one other case of Pink- 
ney's. The case of the "Nereide,"t involving a question of 
international law. During the War of 1812 between the 
United States and Great Britain, the "Nereide," a British 
gunboat mounting sixteen guns, was hired by Manuel Pinto, 
a merchant of Buenos Ayres, to transport a cargo belonging 
to himself and others of his countrymen from London to 
Buenos Ayres. On the passage she was captured by an 
American privateer, and brought into New York, and both 
vessel and cargo condemned as lawful prize. From this de- 
cree Mr. Pinto appealed to the Supreme Court of the United 
States. He was there represented by Emmett and Hoffman ; 

* Story's Life and Letters, Vol. I, p. 325. 
+ Cranch's Rep., Vol. IX, p. 430. 



12 

the captors by Pinkney and Dallas. It was conceded, of 
course, by Pinkney on^ the argument that the goods of a 
neutral on board an unarmed enemy- vessel were exempt from 
condemnation as prize; but he contended that the neutral 
character was forfeited if they were placed on board an 
armed enemy-vessel, inasmuch as the neutral thereby set in 
motion an agent of hostility. 

His argument was a very powerful one and adorned 
with a splendor of eloquence rarely witnessed in a Court 
of Justice. 

"If this cargo was not infected with the hostile character 
of its armament, and the contrary idea were personified," said 
Pinkney, "we shall have neutrality, soft and gentle and de- 
fenseless in herself, yet clad in the panoply of her warlike 
neighbors, with the frown of defiance upon her brow and 
the smile of conciliation upon her lips ; with the spear of 
Achilles in one hand and a lying protestation of innocence 
and helplessness enfolded in the other. Nay, if I may be al- 
lowed so bold a figure in a mere legal discussion, we shall 
have the branch of olive entwined around the bolt of Jove, 
and neutrality in the act of hurling the latter under the de- 
ceitful cover of the former. 

"Call you that neutrality which thus conceals beneath 
its appropriate vestments the giant limbs of war and con- 
verts the charter-party of the counting-house into a commis- 
sion of marque and reprisal, which makes of neutral trade 
a laboratory of belligerent annoyance, which, with a perverse 
and pernicious industry, warms a torpid serpent into life, and 
places it beneath the footsteps of a friend with a more ap- 
palling lustre on its crest and added venom in its sting; 
which, for its selfish purposes feeds the fire of international 
discord, which it should rather labor to extinguish, and in a 
contest between the feeble and the strong, enhances those 
inequalities that give encouragement to ambition and triumph 
to injustice." 



13 

Such a powerful impression did Pinkney make on Chief 
Justice Marshall that it has been said the latter's style even 
was affected by the eloquence of the orator and reflected 
something of its glow in the opinion of the Court. Let 
me quote what he said of Pinkney's argument in the case 
of the ''Nereide." 

"With a pencil dipped in the most vivid colors," said 
the Chief Justice, "and guided by the hand of a master, a 
splendid portrait has been drawn, exhibiting this vessel and 
her freighter as forming a single figure, composed of the 
most discordant materials of peace and war. So exquisite 
were the skill of the artist, so dazzling the garb in which the 
figure was presented, that it required the cold investigating 
faculty which ought always to belong to those who sit on this 
bench to discover its only imperfection — its want of resem- 
blance." 

Although the Court decided the case of "The Nereide" 
against the contention of Pinkney, yet a contemporary de- 
cision by Lord Stowell in the case of "The Fanny" (Dod- 
son's Rep., Vol I, p. 443), and involving the same principle, 
was decided in conformity with it. 

Mr. Pinkney continued his practice in the Supreme 
Court, although now he was a member of the Senate. At 
all times the tremendous energy he expended in the prep- 
aration and argument of his cases was a great strain upon 
his splendid physique. In his arguments every nerve and 
muscle of his body and every power of his mind were at the 
utmost tension. 

When told by a friend on one occasion, that people were 
surprised that he should give up his splendid practice to go 
abroad, "Ah !" said Mr. Pinkney, "people do not know what 
toil, what days and nights my profession demands of me. 
My bow is always bent. I must go away or it will 
break." At the session of the Supreme Court at Washing- 
ton, in 1822, Mr. Pinkney made his last argument. He was 



14 

not well, and besides on this particular occasion he was suf- 
fering from a cold. He spoke, however, with his usual 
fire, vehemence and eloquence, but the silver cord was 
about parting, and the bent bow was about breaking. 
He suddenly paused and asked the indulgence of the Court 
while he sat down for a few moments. The lawyers 
gathered around him and begged him not to go on. The 
weakness soon passed, however, and he rose and proceeded 
with his argument. 

That finished, he w-ent home to his bed, and to his death. 
He died on the 25th day of February, 1822. The announce- 
ment in Congress and in the Supreme Court that William 
Pinkney had gone hence to be no more seen caused great 
and reverential sorrow. His funeral was solemnized under 
the direction of the Senate, and was attended by a vast mul- 
titude, composed of public bodies and citizens. The pro- 
cession was two miles long, and every hack and every vehicle 
in Washington of any sort was pressed into service to enable 
the people to express by their presence on this solmen oc- 
casion their love and admiration for this illustrious man. 

It is a trite saying that the fame of the lawyer is tran- 
sient. But Pinkney's name is so linked with great questions 
of State and great Constitutional issues that I venture to 
think, so long as the records that enshrine them shall escape 
the devastations of time, his fame will echo in the genera- 
tions to come. 



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